Legitimacy of children after reappearance of presumed dead wife

Dear PAO,My sister was married to a man who was previously married to another woman who was declared presumptively dead by a court decision. They got married only after the decision of the court was granted. My sister had several children with her husband during their marriage. After more than a decade of being presumed dead, however, the previous wife of my now brother-in-law reappeared and she wants to have my sister’s marriage set aside. We were told that the previous wife’s appearance can indeed end my sister’s marriage. What will be the status of their children if their marriage is terminated? Will they become illegitimate children? I hope your office can answer us. Thank you very much!John Doug

Dear John Doug,
It seems that your concern is about the effect of the reappearance of your brother-in-law’s wife to the status of your sister’s children. To answer this, we have to first look into the legal consequences of the reappearance of a declared presumptively dead spouse.

According to Article 42 of the Family Code of the Philippines, a subsequent marriage shall be automatically terminated after the reappearing spouse recorded an affidavit of reappearance before the civil registrar. This law requires that the reappearing spouse record the affidavit of reappearance in order for the reappearance to have a legal effect on a subsequent marriage. Thus, should your brother-in-law’s reappeared wife merely reappeared without complying with the aforementioned requirement by law, then her reappearance would not have any effect on the marriage of your sister.

On the other hand, should the reappeared spouse comply with the recording of an affidavit of reappearance, then your sister’s marriage will be terminated. Despite the possible termination of your sister’s marriage, the status as legitimate children of their children would not be affected by it. This is because according to the above-mentioned law:

“Art. 43. The termination of the subsequent marriage referred to in the preceding article shall produce the following effects:

The children of the subsequent marriage conceived prior to its termination shall be considered legitimate, and their custody and support in case of dispute shall be decided by the court in a proper proceeding;

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The law is clear that termination of a marriage caused by the reappearance of an absent spouse would not affect the legitimacy of the children borne from the subsequent marriage. Thus, the legitimate status of your sister’s children would remain unaffected by the termination of your sister’s marriage.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.